Argument Preview: Assessing the fallout from a Government motion to disqualify an appellate military judge, in United States v. Shea, No. 16-0530/AF
CAAF will hear oral argument in the Air Force case of United States v. Shea, No. 16-0530/AF (CAAFlog case page), on Wednesday, January 11, 2017, after the oral argument in Price. The case presents two issues that question the composition of the three-judge panel of the Air Force CCA that reassessed the appellant’s sentence. The genesis of these issues, however, happened in a completely different case that ended after a three-judge panel of the AFCCA reversed a conviction for forcible sodomy for factual insufficiency and then the Air Force Appellate Government Division unsuccessfully moved to disqualify one of those three judges on the basis that she might appear to be biased in favor of the Government:
I. Whether the Court of Criminal Appeals erred on remand when, over appellant’s timely objection, this case was assigned to a panel that did not include all three of the judges from the original decision.
II. Whether a reasonable observer would question the impartiality or independence of the Court of Criminal Appeals after witnessing the removal of Judge Hecker from this case on remand following the Government’s allegations that her impartiality has been impaired by the decision of the Judge Advocate General, who is himself part of the Government, to assign her to perform non-judicial additional duties within the government.
Senior Airman Shea was convicted of violations of Articles 90, 128, and 134, and was sentenced to confinement for four months, reduction to E-1, a reprimand, and a bad-conduct discharge. The convening authority disapproved the adjudged forfeitures as an act of clemency. On appeal, the Air Force CCA reversed one of the convictions and reassessed the sentence, but erroneously approved the adjudged sentence (that included the forfeitures) rather than the lesser approved sentence. CAAF summarily remanded for a new sentence reassessment to fix this (possibly typographic) error, and the CCA ultimately approved the sentence as approved by the convening authority.
But between the time that CAAF remanded Shea (September 2015) and the CCA’s second reassessment in Shea (May 2016), the CCA decided the case of United States v. Rivera, No. 38649 (A.F. Ct. Crim. App. Feb. 18, 2016) (discussed here). In Rivera a three-judge panel of the CCA reversed a conviction for forcible sodomy for factual insufficiency (side-stepping a due process challenge to the military justice system). Colonel Hecker was one of the appellate military judges on the panel that decided Rivera, though she did not author the opinion. She was also, at that time, assigned additional (administrative) duties within the Air Force military justice apparatus; a fact that became significant after the CCA found factual insufficiency in Rivera because after the decision was issued the Air Force Appellate Government Division moved to disqualify Colonel Hecker and get a fresh review of the case by a different panel.
The asserted basis for the motion to disqualify was that Judge Hecker’s other duties involving military justice (that she was assigned to do by the Government) created the appearance that she was biased in favor of the Government in the case the Government just lost:
the United States did file a motion for recusal in Rivera. The United States precisely stated, “[t]o be clear, the United States is not alleging actual impartiality on behalf of Judge H. Nor does it contend that she has advised or acted on Appellant’s case in her capacity with JAJM.” (J.A. at 68.) In fact, the United States argued that due to Judge H.’s assignment to JAJM, a division aligned with the United States Government that provides direction and guidance on prosecuting cases, a reasonable observer might question whether Judge H. was partial to the Government. (J.A. at 78-79.)
Gov’t Br at 5-6 (marks in original). This isn’t – and apparently wasn’t then – a joke.
A reversal for factual insufficiency is a special kind of loss for the Government. While legal sufficiency exists when any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, factual sufficiency is a fresh review of the evidence to decide whether it proves guilt beyond a reasonable doubt. It is a second-guessing of the trial result. Furthermore, there are very few ways the Government can challenge a reversal for factual insufficiency because Congress granted that review power to the CCAs but not to CAAF (it may only review matters of law). So seeking disqualification of Judge Hecker was a long-shot effort by the Air Force Appellate Government Division to get a second chance at preserving Rivera’s forcible sodomy conviction.
It failed. The Air Force CCA rejected the motion in an order dated March 28, 2016, and Rivera’s case was finalized.
On April 8, 2016, despite having rebuffed the government’s attack on Judge Hecker in Rivera, in this case [Shea] the Court of Criminal Appeals instead announced in an unpublished order that Judge Hecker would not be part of the panel on remand.
App. Br. at 5. Shea objected because Judge Hecker was on the original panel that decided his case and also because she was available to participate in the remand (she participated in numerous decisions after the CCA rejected the Government’s disqualification motion, including three decisions issued after the CCA decided Shea on remand). See Gov’t Br. at 6-7. But the CCA overruled that objection and decided the case, leading to the two granted issues now before CAAF.
Shea’s brief makes a weak argument that the panel that decided his case on remand was improperly constituted (Issue I), focusing instead on the issue of the appearance that the CCA lacks independence (Issue II). Relying extensively on CAAF’s opinion in United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page), our #4 Military Justice Story of 2013, Shea asserts that this appearance exists as the product of unlawful command influence:
The government may not, through “inappropriate actions cause the disqualification of a military judge.” Salyer, 72 M.J. at 428. Appellant did not have a right to any particular judge, “but he did have a right to have the military judge detailed to the case be free from inappropriate attempts to remove [her].” Id. at 428, n.15.
The circumstances in this case would cause a reasonable observer to believe that the government succeeded in having Judge Hecker removed by illogically attacking her performance of additional non-judicial duties that the government itself, through its Judge Advocate General, ordered her to perform. A reasonable observer who saw the government obtain the removal of an appellate judge under such dubious circumstances would harbor doubt about whether the Court of Criminal Appeals is impartial and independent. In inspiring that doubt, the government has caused an “‘intolerable strain on public perception of the military justice system.’” Id. at 423 (internal citation omitted).
App. Br. at 10-11. This argument, however, has two obvious flaws.
The first is that the Appellate Government Division’s actions prior to Judge Hecker’s removal from Shea’s case (and assuming that those actions predicated the removal) consisted of merely filing a motion. Unlike in Salyer – where the prosecutors, facing a mistrial, suggested that the judge’s personal life might be a reason to disqualify him from the case, and then a supervisory prosecutor dug through the judge’s personnel record looking for material to use for that purpose, and then the officer-in-charge, also an attorney, participated in the effort to remove the judge, causing the judge to recuse himself – the Appellate Government Division’s mere filing of a motion is exactly what an aggrieved party is supposed to do. It was an embarrassingly bad and badly-timed motion, but it was just a motion. Motions and objections don’t strain public perception of the system just as mere bad lawyering isn’t unethical. Concluding otherwise would discourage litigants from using the courts for their intended purpose.
But more particular to this case, when it comes to appearances the question is what “an objective, disinterested observer, fully informed of all the facts and circumstances” would see. Salyer, 72 M.J. at 423. And any such informed observer wouldn’t be the slightest bit surprised by the Air Force Appellate Government Division’s cringe-worthy motion regarding Judge Hecker. The Division has a reputation for this kind of thing. Recall, for example, how the AFCCA almost held Government counsel in contempt in Sauk in 2015 (discussed here), and how CAAF rejected the Division’s briefs in Janssen in 2014 (discussed here) and in Bowser in 2015 (discussed here). Such an informed observer would also consider the Division’s certain role in the development of the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force in 2014, including the hair-on-fire certification in Burns (that was summarily rejected by CAAF in 2014), particularly considering that the Division claimed concern for appearances as the basis for post-hoc disqualification of Judge Hecker. Fully informed of these recent events, the observer may well conclude that the Air Force Appellate Government Division’s antics are more circus than threat to the integrity of the military justice system.
Predictably, the Air Force Appellate Government Division doesn’t make that argument. Unfortunately, however, it asserts that Shea “forfeited any claim regarding unlawful command influence in the panel composition by failing to raise it.” Gov’t Br. at 18. Such forfeiture somehow occurred despite the admitted fact that Shea “objected to the change in panel.” Gov’t Br. at 18. The Division also argues that:
Appellant Has No Standing to Assert Unlawful Command Influence When the United States Never Moved for the Recusal or Disqualification of Judge H. In This Case.
Gov’t Br. at 18. There may well not be an appearance of unlawful influence in this case, but Shea undoubtedly has standing to make the claim.
The Air Force Appellate Government Division’s brief does eventually settle down, on the penultimate page:
Finally, Appellant appears to argue that the United States can never move for recusal or disqualification of a military judge when it was The Judge Advocate General who assigned this particular judge to perform simultaneous duties at both JAJM on behalf of the government and as an appellate military judge. (App. Br. at 10.) While the Appellate Government Division reports to and represents The Judge Advocate General, the Appellate Government Division has a responsibility as officers of the court to protect the judicial process, and the right, as provided in R.C.M. 902, AFCCA Rules, and the 26 Ocotober 2015 Order, to move for the recusal of a military judge when appropriate.
Gov’t Br. at 22.
The Division most certainly does have the duty to appropriately litigate court-martial appeals. The real issue in this case seems to be how it decides what’s appropriate.